55 So. 425 | Ala. | 1911
This appeal presents two questions only for the decision of this court — one, a question of chancery pleading. The one of law is this: Is a conveyance hy a debtor of substantially all his property to his surety, in consideration that the surety will pay the debt owing to one creditor for which the guarantee is surety, a general assignment within the meaning and operation of section 1295 of the Code of 1907? T'he question of pleading is this: Is a bill of equity multifarious which seeks in the alternativé to declare a given conveyance a general assignment for the benefit of all the grantor’s creditors; and, if not, then to declare it fraudulent as to such creditors? Under our existing statutes we are constrained to answer both of these questions as did the chancellor — that is, the first, in the affirmative; the latter, in the negative.
Section 1295 of the Code, which, is most material to the first question, is as follows: “Every general assignment made by a debtor, ‘or a conveyance by a debtor, of substantially all of his property subject to execution in payment of a prior debt; by which a preference or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be and inure to the benefit of all the creditors of the grantor equally.’ * * A general assignment within the meaning of this section shall include, in addition to the
In this first case the statute was held to apply to a conveyance of á part only of the debtor’s property, on the ground that he contemplated a general assignment at the time he conveyed, and did subsequently make the general assignment, and that the first was only a part of the general assignment. This court has uniformly held that a surety is a creditor of. his principal from the inception of the contingent liability; that he is a creditor in such sense that he may maintain a creditor’s bill against his principal as to fraudulent conveyances of the principal’s property with intent to defraud creditors, one of whom is the surety. — Smith v. Pitts, 167 Ala. 461, 52 South. 403; Keel v. Larkin, 72 Ala. 493, 500. If the surety can file a creditor’s bill against the principai and other creditors to set aside a. conveyance made by his principal either as fraudulent or as a general assignment, ' while his liability is only contingent, we can see no reason why other creditors cannot file such a hill against him, when he is the grantee of the fraudulent conveyance, or when it is a general assignment, as in this case, and the one to be held as a trustee. In fact, a number of such bills have been filed, and in each case was held to have been properly filed. Such were the causes of Watts v. Eufaula Bank, 76 Ala. 474, and Crawford v. Kirksey, 50 Ala. 590. In the case of Smith v. McCadden, 138 Ala. 284, 36 South. 376, the transaction assailed was removed one degree further from the
Although a surety cannot maintain an action against his principal on the liability created by the suretyship, until such surety has paid the debt or a part thereof, it is because the right of action does not come into existence until such payment, and not because the relation of debtor and creditor did not theretofore exist. The same thing is true as to the creditor or payee of a note signed by the principal and surety. The payee cannot sue the principal or the surety until the note is due, yet the relation of debtor and creditor certainly exists from the making of the note. While a surety probably could not file a creditor’s bill as to conveyances by his principal until he had paid the surety debt, yet he is a creditor within the protection of the statutes from, the inception of his contingent liability; and, after he has paid the surety debt, he may maintain his creditor’s bill against the principal and other creditors to set aside fraudulent conveyances made while the liability of the surety was contingent, or to have them declared general assignments. As before said, if he can maintain such bills against other creditors, surely the other creditors ought to be able to maintain them against him, if he happens to be the one preferred or benefited by the transaction. If the debtor in this case
To the second question, the one of procedure, whether a creditor’s bill can be filed in the alternative — in one aspect assailing a conveyance as fraudulent, and, in another, asserting its validity, and that it was a general assignment — it was at first held that such a bill could be maintained— (Crawford v. Kirksey, 50 Ala. 590), but that case was subsequently overruled in the case of Lehman v. Meyer, 67 Ala. 897, and the decision has been often reaffirmed down to the case of Green & Gray v. Wright et al., 160 Ala. 476, 49 South. 320. Since the bills were filed in these last cases, but before the filing of the bill in the case under consideration, the statutes as to chancery pleading and practice have undergone changes more or less radical by the adoption of the Code of 1907. The one as to multifariousness now reads: “Unless taken by demurrer, objection to a bill because of multifariousness must not be entertained. A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter' or founded on the same contract or transaction, or relating to the same property between the same parties.” Section 3095. The effect of this statute was to alloAv a bill like this to be filed, AAdiich seeks alternative reliefs, though inconsistent, if they be founded upon the same transaction and groAv out of the same subject-matter, and are
• Affirmed.